| People v Smalling |
| 2017 NY Slip Op 03442 [29 NY3d 981] |
| May 2, 2017 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 14, 2017 |
| The People of the State of New York, Respondent, v Omar A. Smalling, Appellant. |
Argued March 23, 2017; decided May 2, 2017
People v Smalling, 126 AD3d 820, reversed.
Lynn W.L. Fahey, Appellate Advocates, New York City (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Jill A. Gross-Marks, Robert J. Masters and John M. Castellano of counsel), for respondent.
Memorandum.
The order of the Appellate Division should be reversed and a new trial ordered.
Although we reject defendant's contention that the evidence presented at trial did not support a charge of constructive possession, we nevertheless conclude that defendant is entitled to a new trial. The trial court erred in that it agreed to the People's request at the charge [*2]conference not to charge the jury on constructive possession, but then ultimately provided a constructive possession charge to the jury, resulting in prejudice to defendant (see CPL 300.10 [4]; People v Greene, 75 NY2d 875, 876-877 [1990]). Under the unique circumstances of this case, the error is not harmless (cf. People v Nevins, 16 AD3d 1046, 1047 [4th Dept 2005], lv denied 4 NY3d 889 [2005], cert denied 548 US 911 [2006]).
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.
Order reversed and a new trial ordered, in a memorandum.